Smith brought an action of assumpsit against Conklin. The declaration contains but one count, and that is a general one for money paid, laid out, and expended.
Pleas, the general issue, a set-off, and the statute of limitations. Replications to the last two pleas, and issues.
The cause was submitted to the Court, and judgment rendered for the plaintiff.
There was evidence tending to prove that certain rent due to. Smith, the plaintiff, from a tenant who had occupied certain real estate of Smith's, had been improperly received from the tenant by Conklin, the defendant. But if it be admitted that Smith has a legal claim against Conklin for the money received by Conklin, it cannot be recovered in this action for money paid. The proper form of action in such case would be for money had and received.
The plaintiff contends that there is evidence tending to show that he paid money to the defendant under a mistake of facts. But if there is such evidence, it only tends to show the plaintiff’s right to recover under a count for money had and received — not for money paid.
To sustain a count for money paid, laid out, and expended, there must have been a payment of money by the plaintiff to a third party, at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount. 2 Saunders’ Plead. and Evidence, 402.
The judgment is reversed, with costs. Cause remanded, with leave to the plaintiff to amend his declaration.